Docket: IMM-8018-13
Citation: 2013 FC 1256
Toronto, Ontario, December 17, 2013
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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SANDRA GONZALEZ MARTINEZ AND
LUIS ENRIQUE SANTIAGO GONZALEZ
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Applicants
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
UPON Motion,
dated the 16th day of December, 2013, on behalf of applicants, for
an Order staying the execution of the removal Order until such time as their
Application for leave and judicial review in this matter has been disposed of.
[2]
AND UPON reading the motion record on behalf of the
applicants.
[3]
AND UPON hearing the parties’ counsel in the evening of
December 16, 2013. For the reasons that follow, the stay of execution of the
removal order with respect to the applicants is dismissed.
[4]
The applicants came to the
Court literally at the last hour for a stay of the removal Order that is to be
executed on December 17th, 2013 at 8:30. The applicants are
not the only ones to be faulted, as the respondent has chosen to issue the
order with very little time to exercise judicial recourse. Counsel for the
respondent was incapable to explain where the urgency came from. This is
unfortunate. If the circumstances had been slightly different, I would
have been tempted to grant the stay of execution.
[5]
However, in this particular
case, it must be acknowledged that the applicants do not come to the Court with
completely clean hands. Furthermore, they had known since December 11th
that their removal would take place on December 17th .
It is only on December 13th, after the close of business, that
an application was made for a deferral to the inland enforcement officer
(deferral officer) with additional submissions made on December 15th.
It is not surprising that the decision to review the deferral came earlier
yesterday. Counsel for the applicant moved with remarkable diligence
by seeking to have the refusal judicially reviewed. The stay application
came in support of the leave application for judicial review of the refusal to
defer the removal order.
[6]
It is not disputed that the tri-partite
test of R.G.R MacDonald v. Canada, [1994] 1 SCR 311 and Toth
v. MEI (1988), 86 NR 302 controls. Hence, the Court must be satisfied
that there is a serious issue to be tried on the judicial review, that
irreparable harm to the applicants will arise if deported, and the balance of
convenience favors them. Failure on the part of the applicants on any
branch of the test is fatal. In my view, it will suffice to discuss the
balance of convenience and the serious issue branches of the test.
[7]
The applicants in this case
have been without status in this country ever since their arrival in Canada on June 7, 2007. They immediately made a refugee claim which was denied on June 3,
2009. Their leave application for judicial review was also unsuccessful.
Their Pre-Removal Risk Assessment was also rejected and arrangements were
made for their immediate departure then scheduled for August 5, 2010.
They failed to appear and in fact, disappeared. It is only in June
of 2013 that the applicants resurfaced when they made an application for
permanent residence based on humanitarian and compassionate grounds. It
took 6 months for the authorities to locate them and they were arrested on
December 10, 2013 (a warrant for their arrest had been issued in August 2010).
[8]
There is a considerable
public interest in removing from Canada persons that are without status. In
this case, the applicants have been fugitive for more than 3 years. A removal
Order, following due process of the law, was issued in July 2010. The Immigration
and Refugee Protection Act, S.C. 2001, C 27, was amended recently (s.48) to
limit even more any residual discretion that was left with officers tasked with
removing foreign nationals.
[9]
In the case at bar, two
persons who came to Canada more than six years ago have sought very remedy and
have failed. Instead of abiding by the removal order, they chose
to abscond for a long period of time. I find that the balance of convenience
favors the respondent, in that respect for the rule of law should prevail in
these circumstances.
[10]
Furthermore, I fail to see
what the serious issue is in this case. Because the remedy sought on the stay
application is the same as the one claimed in the underlying judicial review
application, I have to "closely examine the merits of the underlying
application". (Wang v. Canada (MCI), 2001 3 F.C 682, at
paragraph 10).
[11]
As already indicated, the
discretion of the deferral officer is very limited. The deferral officer
cannot review the humanitarian and compassionate application. The law
orders her to enforce a removal order as soon as possible. It is only if
the exercise of that limited discretion is shown to be unreasonable that an applicant
can be successful. The notion of reasonability is that which was
described by the Supreme Court of Canada in the seminal case of Dunsmuir v. New Brunswick, 2008 SCC 9; (2008) 1 SCR 190, at paragraph 47.
[12]
Here we have an articulated
decision of a deferral officer with which the applicants take issue on three
different fronts. First, they claim that the deferral officer fettered her
discretion. The applicants argue that the deferral officer refused to deal with
what is presented as the very serious grounds for the request, that is
that an H&C application is pending and irreparable harm would be caused to
one applicant in terms of educational support.
[13]
I have reviewed carefully
the decision made. The argument presented by the applicants in my view is
no more than a disagreement on the weight to be put on the evidence. The
decision is in my estimation eminently reasonable. The deferral officer is not
the decision maker on the H&C application and she gave due consideration to
the grounds for the request.
[14]
Similarly, it is alleged
that some evidence was ignored. But I repeat. The discretion of the
deferral officer has is limited. The applicants would wish to turn the
exercise of a limited discretion into something more akin to a complete review
based on humanitarian and compassionate grounds. What is presented as evidence
detailing the lack of educational support for one of the applicants if returned
to Mexico never rose to the level required to suggest that the decision was not
reasonable. Indeed, the deferral officer explained adequately why this argument
must fail.
[15]
Finally, the applicant
raised the best interests of the child. The child in question is 18 years
of age. The deferral officer had to be alive and sensitive to the short
term interests of the child (Acevedo v. Canada, 2007 F.C 401).
She was, especially in view of the age of that child. Clearly, the
deferral officer was alive and sensitive. The applicants disagree with
the assessment made. That is not sufficient. Deference to the
decision maker is owed. But in this case, I am satisfied that the deferral
officer was even more than alive and sensitive.
[16]
As a result, the motion for
a stay of the removal order with respect to the two applicants is dismissed.
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